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In re Marriage of Kiferbaum

Court of Appeals of Illinois, First District, Second Division

September 30, 2014

In re MARRIAGE OF JUDITH KIFERBAUM, Petitioner-Appellant, and HANAN KIFERBAUM, Respondent-Appellee

Page 1205

Appeal from the Circuit Court of Cook County. No. 09 D 577. Honorable Naomi Schuster, Judge Presiding.

SYLLABUS

In proceedings that resulted in the trial court granting respondent's petition for an order of protection under the Illinois Domestic Violence Act and then dismissing petitioner's request for an order of protection on the ground that the Act prohibits mutual orders of protection, the appellate court reversed the dismissal of petitioner's request, since she was seeking a correlative separate order of protection, not a mutual order of protection, and although correlative separate orders of protection are not favored, they are allowed if certain requirements are met, and petitioner satisfied those requirements by filing a separate petition, commencing a separate action, filing a written petition, providing notice to all parties, and being prepared to present separate proof supporting her petition.

Jan R. Kowalski, Chicago, for appellant.

No brief filed for appellee.

PRESIDING JUSTICE SIMON delivered the judgment of the court, with opinion. Justices Neville and Pierce concurred in the judgment and opinion.

OPINION

SIMON, PRESIDING JUSTICE.

Page 1206

[¶1] On January 23, 2009, petitioner Judith Kiferbaum (Judith) filed the underlying petition for dissolution of marriage from her husband, respondent Hanan Kiferbaum (Hanan). Judith also sought, and was granted, a temporary order of protection on January 23, 2009, and a plenary order of protection on February 4, 2009. With respect to the parties' abusive behavior toward each other, the parties' agreed disposition order of June 8, 2009, also restricted contact between the parties. On March 17, 2010, judgment for dissolution of marriage was entered with the issue of maintenance remaining open.

[¶2] On June 21, 2012, Judith sought an emergency order of protection against Hanan that was granted and set for further hearing on July 12, 2012. However, that petition was dismissed on July 12, 2012. Also on that date, after the petition was dismissed, Hanan filed an emergency petition for an order of protection against Judith. The trial court found that the petition was not an emergency and set the matter for further hearing. On July 20, 2012, Judith filed a petition for an emergency order of protection that was denied for lack of personal knowledge of Hanan's alleged conduct. On July 31, 2012, Judith filed the underlying petition for an order of protection.

[¶3] An agreed order restraining and enjoining Judith and Hanan from certain locations was entered, the petitions were continued to allow discovery, and the court set a November 30, 2012, hearing date on the " cross petitions for order of protection." The matter was continued to January 30, 2013, when the trial court granted Hanan's petition for an order of protection and set argument for Hanan's motion to dismiss Judith's amended petition for an order of protection on February 5, 2013. On February 5, 2013, the trial court granted Hanan's motion to dismiss, finding that the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 et seq. (West 2010)) does not permit mutual orders of protection.

[¶4] Judith argues on appeal that the trial court erred in construing section 215 of the Illinois Domestic Violence Act (750 ILCS 60/215 (West 2010)) in dismissing Judith's petition. Judith also contends that the trial court abused its discretion in granting Hanan's petition. For the following reasons, we affirm the judgment of the trial court as to the grant of Hanan's petition for a protective order and reverse the dismissal of Judith's petition for a protective order.

[¶5] I. BACKGROUND

[¶6] Judith and Hanan were married on January 17, 1988, and the marriage was

Page 1207

registered in Haifa, Israel. The parties resided in Skokie, Illinois, and had one child under the marriage, born on June 25, 1988. On January 23, 2009, citing irreconcilable differences, Judith filed the underlying petition for dissolution of marriage from Hanan. Judith also filed a petition for an order of protection, a third-party complaint against respondent's business and banking entities, an emergency ex parte petition for a temporary restraining order, preliminary injunction, and other relief, and a petition for interim prospective attorney fees and costs against Hanan.

[¶7] Judith presented an affidavit in support of her petition for an order of protection, testifying to Hanan's behavior toward Judith at various dates in the prior year that exhibited escalating and repeated abuse and harassment such that Judith feared for her personal safety. Judith averred that Hanan repeatedly yelled at her, telling her that she must follow his rules, and that if she did not comply with his rules and demands he would " screw [her] completely," humiliate her to her friends and employers, and leave her penniless. Judith also detailed occurrences where Hanan demanded that Judith perform oral sex or she would be responsible for " a bad situation." Judith testified that for fear of what Hanan might do, she complied with his demand each time while crying throughout the ordeal. Judith also detailed times where Hanan insulted her by yelling at her that she was a " whore" and screaming that she was " only good to suck dick! I give you $4,000 a month for that! I'd be better off to f*** any [other] woman or anybody! I'll pay any money because it is better than you!"

[¶8] The court entered an emergency order of protection against Hanan and set the matter for a hearing on February 13, 2009. On January 27, 2009, Hanan filed an emergency motion to vacate the order of protection and an evidentiary hearing was held on February 4, 2009. Following testimony by both parties, the trial court noted the stark differences in the testimony of the two required a credibility determination and, having observed the witnesses and heard their testimony, found Judith ...


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